Citation Nr: 1509406
Decision Date: 03/04/15 Archive Date: 03/17/15
DOCKET NO. 12-23 939A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in New York, New York
THE ISSUE
Entitlement to increased nonservice-connected death pension benefits from February 1, 2009.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and L.K.
ATTORNEY FOR THE BOARD
M. Zawadzki, Counsel
INTRODUCTION
The Veteran served on active duty from September 1918 to April 1919. He died in 1994. The appellant is his surviving spouse.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 decision issued by the Department of Veterans Affairs (VA) Regional Office and Insurance Center (ROIC) in Philadelphia, Pennsylvania. During the pendency of the appeal, the case was transferred to the jurisdiction of the RO in New York, New York.
In the September 2011 decision, the RO granted death pension benefits with aid and attendance from February 1, 2009. In November 2011, the appellant disagreed with the award amount, and asserted that she was entitled to more than the $354 per month she was currently receiving. In an accompanying statement, she indicated that she was dissatisfied with her reduced income as of May 1, 2011. The August 2012 statement of the case (SOC) characterized the issue on appeal as entitlement to nonservice-connected death pension in excess of $364; however, in the SOC, the RO discussed the monthly pension rate from February 1, 2009 through December 1, 2011. The appellant filed a VA Form 9 in September 2012, in which she indicated that she wanted to appeal all of the issues listed on the SOC. Accordingly, the Board has characterized the issue on appeal as reflected on the title page.
In July 2013, the Veteran testified before the undersigned Veterans Law Judge via videoconference; a transcript of the hearing is of record. In connection with the hearing, the appellant submitted additional evidence, along with a signed waiver of Agency of Original Jurisdiction (AOJ) consideration. See 38 C.F.R. § 20.1304 (2014).
In addition to the paper claims file, the Board has reviewed the Veteran's Virtual VA and Veterans Benefits Management System (VBMS) e-folders. The Virtual VA e-folder includes additional evidence pertinent to the claim on appeal, some of which was not considered in the August 2012 SOC. As the claim is being remanded, however, the AOJ will have the opportunity to consider this evidence on remand.
The VBMS e-folder reflects that, in October 2014, the appellant filed a claim to have a new check sent to her because a check previously issued had not been cashed and was voided. This matter is referred to the AOJ for appropriate action.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
Remand is required to clarify the appellant's income, specifically, the type of income received from the Social Security Administration (SSA), to obtain additional medical expense information, and to allow the AOJ to readjudicate the claim, considering all evidence of record.
Accordingly, the case is REMANDED for the following action:
1. Provide the appellant a notice letter which advises her of the information and evidence necessary to substantiate her claim for a higher rate of nonservice-connected death pension, to include factors such as what constitutes countable income and what sources of income are excluded from this calculation.
2. Clarify the type (i.e., Social Security disability, supplemental security income, etc.) and amount of SSA benefits the appellant has received since February 1, 2009. The type and amount of SSA benefits must be documented in the record.
3. Inform the appellant that her income and unreimbursed medical expenses must be determined for each year since February 1, 2009, and afford her the opportunity to provide information regarding medical expenses incurred since that time. Specifically, provide the appellant with VA Form 21P-8416 (Medical Expense Report), and ask her to report any additional medical expenses incurred since February 1, 2009, which were not previously reported to VA in a Medical Expense Report.
Ask the appellant to clarify transportation costs related to medical care, as previously reported in August 2012 and August 2013 Medical Expense Reports. With regard to the August 2012 report, she should identify the medical facility(ies) to which she took bus transportation. With regard to the August 2013 report, she should, in particular, clarify whether she took a personal vehicle to Elmhurst Medical Center and, if so, clearly report the total miles traveled. She should also identify the medical facility(ies) to which traveled at a cost of $45, as reported. Provide a copy of these August 2012 and August 2013 Medical Expense Reports to the appellant for reference.
Afford the appellant the opportunity to provide updated income information. Specifically, provide her with VA Form 21-0518-1 (Improved Pension Eligibility Verification Report (Surviving Spouse with No Children)) and ask her to submit updated income information.
5. Conduct any other appropriate development deemed necessary. Thereafter, readjudicate the claim, considering all evidence of record. In readjudicating the claim, the AOJ must clearly discuss the inclusions in and exclusions from income from February 1, 2009 to the present. If the benefit sought remains denied the appellant and her representative should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for a response.
The appellant has the right to submit additional evidence and argument on the matter that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).